Hebron v. Centre-Harbor

Gilchrist, J. The fourth clause of the first section of the act of the 16th of December, 1829, N. H. Laws 300, (Ed. of 1830,) provides, that “ any person, of the age of twenty-one years, having real estate of the value of two hundred and fifty dollars, or personal estate of the value of one hundred and fifty dollars, in the town where he dwells and has his home, and for the term of four years in succession paying all taxes assessed on his poll and estate aforesaid, shall thereby gain a settlement in such town.” On the question whether a pauper had gained a settlement by being the owner of real estate, it has often been held to be sufficient, for the purposes of settlement, if he had an equitable title only, and not a legal title, Whitestown vs. Constable, 14 Johns. 469, and cases there referred to. And the same principle is recognized in Poplin vs. Hawke, 8 N. H. Rep. 124. And a right in equity to redeem land has been held to be real estate within the meaning of the statute. New-London vs. Sutton, 2 N. H. Rep. 401. So the estate of a cestui que trust is real estate within the statute, for the purposes of settlement. Orleans vs. Chatham, 2 Pick. 29. [574] If, therefore, the title may be of either of the descriptions above mentioned, it may perhaps be an equitable title of any character. If, having an equitable title, that title could be made perfect in him by a decree for specific performance, it may be he would have such a title as is contemplated by the statute. But this point need not now be settled. It is contended that the conveyance by Fox, and the agreement in writing made by Sturtevant on the same day, made the whole transaction a mortgage, and left an equity of redemption in Fox. This agreement was to re-convey, on the payment of the sum of $160.00, or to pay all costs and damages. The court, at the time of the execution of these instruments, possessed some chancery powers in questions of mortgage ; but they were derived entirely from statute, and were of very limited extent. At common law, a mortgage is defined to be a deed conveying lands, with a condition that it should be void upon payment of money, or the doing of some other act. This condition may be included in the deed of conveyance, or it may be by a separate deed, executed, or, at least taking effect, at the same time, so as to be a part of one and the same transaction. It must be by deed, and cannot be by parol, or by instrument in writing not under seal. Lund vs. Lund, 1 N. H. Rep. 39. It is clear, therefore, that the whole transaction did not constitute a mortgage at common law ; and it is unnecessary to inquire whether it were an equitable mortgage—-as, if it were, the court could not enforce it as such, on account of their not being invested with chancery powers. There is also another ground upon which it may be held that here was no mortgage ; and that is, because the grantee had an election to re-convey the land, or to pay all costs and damages. The fee of the land was absolute in the grantee, if he elected so to consider it. This point is settled in Fuller & a. vs. Pratt & a., 1 Fairf. 197. [575] Even if the contract could hace been enforced in equity by a decree for specific performance, the court had no chancery powers that would reach this case. These powers were not given the court until the year 1832, and this transaction happened some years before that time. But even if tire power to decree a specific performance had existed, it is very questionable whether this were a contract which equity would enforce by a decree for a re-conveyance. In the case of Fuller & a. vs. Pratt & a. the grantees, by an instrument under seal, agreed to pay the grantor any balance that might be found due on settlement, or re-eonvey the land. It is said by Mellen. C. J., that “no bill in equity could have been maintained against the grantees, because they were not bound to re-convey the laud, but might discharge themselves from their contract by payment in money of the balance that should be due ; and, for the same reason, such contract created no right which could have been attached and sold for the payment of the grantee’s debts.” Fox, therefore, had no property, which, at that time, could be considered as real estate, but only a chose in action, which he might enforce by a suit for the recovery of damages. If this could be considered personal estate, to the value of the difference between the amount of the incumbrance and the value of the land as found by the jury ; that is, if a right of action against Sturtevant were worth the sum which the party could legally recover, still Fox did not own such property a sufficient length of time to fulfil the requisitions of the statute, nor is there any evidence from which it can be inferred that the property was worth the sum of two hundred and fifty dollars, after the conveyance to Sturtevant. Fox held no real estate, and the personal estate does not appear ever to have been worth more than the sum of $ 190.00, the difference between the amount of the incumbrance and the value of the land. The verdict, therefore, must be set aside, and there must be Judgment for the defendant.